The U.S. Court of Appeals for the 11th Circuit has ruled that a plaintiff must show that the defendant knew its conduct violated the Telephone Consumer Protection Act (TCPA) to establish a willful or knowing TCPA violation. The TCPA provides that a court, “in its discretion,” may award treble damages if the defendant “willfully or knowingly” violated the statute. A treble damages award allows a plaintiff to receive statutory damages of $1,500 for each TCPA violation rather than $500.

In Lary v. Trinity Physician Financial & Insurance Services, the plaintiff, a physician, alleged in his pro se complaint that the defendants used an automatic telephone dialing service to send an advertisement to a fax machine connected to an emergency telephone line he maintained at his health care facility. He claimed that the fax violated TCPA provisions that prohibit “any [non-emergency] call…using any automatic telephone dialing system…to any emergency telephone line” unless made with the called party’s prior express consent, and subject to certain exceptions, the use of “any telephone facsimile machine…to send, to a telephone facsimile machine, an unsolicited advertisement.” The complaint sought statutory damages of $1,500 for each TCPA violation, for a total of $3,000.

The district court had rejected the plaintiff’s treble damages claim but, based on the plaintiff’s statement in his motion for a default judgment that he had received two faxes, awarded him $500 in statutory damages for each fax. The 11th Circuit ruled that because the plaintiff’s complaint alleged that he only received one fax, the defendants could not, by default judgment, be held liable for a second fax. However, because the 11th Circuit concluded that the TCPA allows a single fax to serve as the basis for two separate TCPA violations and agreed that the plaintiff was not entitled to treble damages, the court found that the district court had correctly awarded total statutory damages of $1,000.

The 11th Circuit ruled that the TCPA’s treble damages provision “requires the violator to know he was performing the conduct that violates the statute.” According to the court, because the plaintiff did not allege or present evidence establishing that the defendants knew they had sent a fax to an emergency line or the advertisement was unsolicited, he failed to establish that the defendants “willfully or knowingly” violated the TCPA. The 11th Circuit observed that if it interpreted the TCPA to require only that the violator knew he was making a call or sending a fax, the TCPA “would have almost no room” for violations that are not willful or knowing.

Ballard Spahr’s Consumer Financial Services Group regularly counsel clients on TCPA compliance. The firm has also created a TCPA Task Force to assist clients in navigating the complex and challenging issues that arise under the TCPA. The task force, which comprises regulatory attorneys and litigators, assists clients by providing counsel on avoiding TCPA liability, including reviewing policies and practices and helping to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. In addition, task force members defend clients against TCPA class or individual actions.

For more information, please contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com, Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com, or Daniel JT McKenna at 215.864.8321 or mckennad@ballardspahr.com.


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